State of Kerala v. Mary Sherin P.N and K.V. Lakshmi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941** **OP(KAT).No.443 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OA 1175/2018 DATED 16-11-2018 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001, KERALA. 2 THE STATE POLICE CHIEF, POLICE HEAD QUARTERS, VELLAYAMBALAM, THIRUVANANTHAPURAM-695010, KERALA. 3 DIRECTOR,** **FORENSIC SCIENCE LABORATORY, VELLAYAMBALAM, THIRUVANANTHAPURAM-695010.** ## **BY GOVERNMENT PLEADER** ## **RESPONDENT/S:** **1 MARY SHERIN P.N W/O.JISS PAUL CLEETUS, NADUVATHEZHATH HOUSE, 26/294 A , STEPHEN PAUDA ROAD, KONTHURUTHY, ERNAKULAM-682013, NOW WORKING AS SCIENTIFIC OFFICER, MOBILE FORENSIC SCIENCE LABORATORY UNIT DISTRICT RIME RECORDS BUREAU, ERNAKULAM, KERALA. 2 K.V.LAKSHMI, ASSISTANT DIRECTOR (POLYGRAPH), REGIONAL FORENSIC SCIENCE LABORATORY, THRISSUR, KERALA-680000.** ## **OTHER PRESENT:** ## **SR.GP SRI.ANTONY MUKKATH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 12.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**OP(KAT).443/19**_ 2 ## **K.VINOD CHANDRAN & V.G.ARUN, JJ.** ----------------------------------------------O.P (KAT).No. 443 of 2019 ----------------------------------------------Dated this the 12[th] day of November, 2019 ## **JUDGMENT** ## _**Arun, J.**_ The State of Kerala and its officials are aggrieved by Exhibit P4 order of the Kerala Administrative Tribunal declaring the applicant/1[st] respondent herein to be eligible for promotion as Assistant Director (Documents) in the State Forensic Science Laboratory (FSL), with effect from 7.11.2017. For the sake of convenience, the parties and documents are referred to as in the original application. 2. The applicant was appointed as Scientific Assistant (Documents) at FSL, Thiruvnanthapuram on 5.11.2009. The post of Scientific Assistant was re-designated as Scientific Officer as per G.O(MS)No.48/2016/Home dated 12.2.2016. As per the Special Rules for the various technical posts in the State Forensic Laboratory, the next promotion post of the applicant was that of Assistant Director (Documents). The method of appointment as Assistant Director is by promotion from the post of Scientific Officer with at least five years of service. There are various categories of Scientific Officer and Assistant Directors, the method of appointment to which are the same. Further _**OP(KAT).443/19**_ 3 promotion from the post of Assistant Director is to the post of Joint Director, which is based on the combined seniority of the incumbents in the different categories of Assistant Director. The applicant became eligible for promotion as Assistant Director on 5.11.2014, on completion of the requisite service of five years in the feeder category post of Scientific Officer. In the meanwhile, by Annexure A4 dated 14.10.2014, the Government granted approval for establishment of a Regional Forensic Science Laboratory (RFSL) at Kochi. Thereafter by Annexure A5 dated 19.5.2017, 11 posts, including four posts of Assistant Directors (Biology/Chemistry/Documents/Physics) were sanctioned for the RFSL, Kochi. With the sanctioning of a post of Assistant Director (Documents) at RFSL, Kochi there arose a clear vacancy, to which the applicant was eligible to be promoted, she being the senior most among the Scientific Officers (Documents). When steps were taken to promote the 4[th] respondent, who is junior to the applicant and working in the post of Scientific Officer (Polygraph), as Assistant Director, the applicant submitted a representation staking her claim to be promoted to the available vacancy of Assistant Director (Documents), she being senior to the 4[th] respondent. By Annexure A7, the Director, State Forensic Laboratory recommended the case of the applicant for promotion and requested the State Police Chief to take necessary action to promote the applicant in order to protect her _**OP(KAT).443/19**_ 4 seniority. In spite of the recommendation, the Departmental Promotion Committee (DPC) was not convened and in the meanwhile, by Annexure A8 order dated 2.9.2017 the 4[th] respondent was promoted as Assistant Director (Polygraph) against a vacancy which had arisen on 31.7.2017. 3. Later, the DPC was convened and Annexure A9 select list was published containing the name of only the applicant. Annexures A10 and A13 are orders by which similarly situated candidates included in the select list of Assistant Director (Biology) and Assistant Director (Physics) were promoted with effect from 28.7.2017 and 7.10.2017. The promotions were effected to the vacancies at the yet to be functional RFSL, Kochi and the incumbents allowed to continue at Thiruvananthapuram. Even though the applicant filed repeated representations seeking promotion on the strength of her inclusion in the select list and the vacancy available at RFSL, Kochi, there was no positive response and instead, a select list containing the name of Scientific Officers (Documents), who are juniors to the applicant, was published for the purpose of effecting promotion to the vacancies of Assistant Director which had arisen in the year 2018. The original application was filed at that point of time seeking the following reliefs: - _“i. to call for the records relating to applicants promotion and declare that she is entitled to get promotion to the post of Assistant Director (Document) against_ _**OP(KAT).443/19**_ 5 _vacancies created in Annexure A5 w.e.f 19.5.2017._ - _ii. direct the respondent to issue orders promoting the applicant to the post of Assistant Director (Documents) against post/vacancy created in Annexure A5 from 19.5.2017 and also to grant consequential benefits.”_ 4. During the pendency of the original application, the Government issued Annexure A19 order dated 23.6.2018 promoting the applicant as Assistant Director (Documents) and posting her at FSL, Thiruvananthapuram in the vacancy that had arisen consequent to the promotion of the incumbent in that post. The applicant assailed the order of promotion on the ground that she was entitled for promotion with effect from 19.5.2017 to the vacancy available at RFSL, Kochi and the promotion granted with effect from 23.6.2018 to a promotion vacancy at Thiruvananthapuram was only to wreak vengeance on the applicant for having resorted to her legal remedies. The official respondents sought to justify their action by stating that the DPC having been convened only on 5.10.2017, the applicant cannot aspire for promotion with effect from 19.5.2017. It was submitted that while promoting the applicant as per Annexure A19, her seniority in the post of Scientific Assistant (Documents) was protected. 5. On consideration of the rival contentions, the Tribunal found that the applicant had become eligible for promotion after completion of five years of service as Scientific Officer (Documents). The post of Assistant Director (Documents) was created at RFSL, Kochi as per 6 _**OP(KAT).443/19**_ Annexure A5 dated 19.5.2017. The DPC met on 5.10.2017 and approved the select list by including the applicant as the lone candidate for promotion to the post of Assistant Director (Documents), for the vacancies of the year 2017. Two other similarly situated Scientific Officers, who were also included in the select lists of their respective category, pursuant to the DPC meeting of 5.10.2017 were granted promotions with effect from 25.7.2017 and 7.10.2017. The Tribunal noted that even though in the reply statement the respondents had merely stated that the order of promotion in favour of the applicant was passed purely on administrative convenience. 6. Based on its findings, the Tribunal came to the conclusion that the applicant is entitled to get similar treatment as was given to the two Assistant Directors promoted pursuant to the recommendation of the DPC held on 5.10.2017. Reliance was placed on the decision of a Full Bench of this Court in _**Varghese and Others v. State of Kerala and Others**_ [1981 KLT 458 (FB)] to hold that the time of occurrence of vacancy is relevant for determining the question of promotion and not the time when the order of promotion is passed. It was hence held that the applicant being the lone candidate, included in Annexure A9 select list dated 7.11.2017 and the vacancy of Assistant Director (Documents) having been available at RFSL, Kochi, there was no reason for the Government to have denied promotion to the applicant _**OP(KAT).443/19**_ 7 to that vacancy as was done in the case of the other two similarly situated Scientific Officers. The Tribunal also noted that the next promotion of the applicant to the post of Joint Director being from a common pool of Assistant Directors of all subjects, the unreasonable delay in promoting her to the post of Assistant Director will adversely affect her further promotion. Hence, the Tribunal declared the applicant to be eligible for promotion with effect from the next date of publication of the select list, i.e., 7.11.2017 and directed the Government to pass appropriate orders within six weeks. 7. The main ground of challenge in the original petition is that, on being granted promotion as per Annexure A19, the grievance of the applicant stood assuaged and the Tribunal could not have granted any further relief. It is contended that promotion to a selection post cannot be claimed as of right and there is no provision for granting notional promotion or retrospective promotion with effect from the date of occurrence of vacancy. 8. The grounds urged are not sufficient to unsettle the well reasoned order of the Tribunal. The following facts are not in dispute; (i) The applicant became entitled for promotion Assistant Director (Documents) on 5.11.2014, (ii) A vacancy of Assistant Director (Documents) was available at RFSL, Kochi based on Annexure A5 order dated 19.5.2017, (iii) Applicant was the only candidate included in the _**OP(KAT).443/19**_ 8 select list of Assistant Director (Documents) published on 7.11.2017, (iv) The Director, Forensic Science Laboratory had recommended to promote the applicant and protect her seniority, (v) Two other Scientific Officers included in the select list based on the recommendations of the DPC dated 5.10.2017 were promoted as Assistant Directors in their disciplines and posted at RFSL, Kochi and allowed to continue at FSL, Thiruvananthapuram, (vi) The method of appointment to the post of Joint Director is by way of promotion from a common pool of Assistant Directors of all disciplines based on seniority, and (vii) No reason is stated for delaying the promotion of the applicant, other than administrative convenience. 8. In the light of the undisputed facts, the Tribunal was fully justified in finding that there was unreasonable and unexplained delay in promoting the applicant, in spite of she being the only person included in the select list for promotion and in spite of the post of Assistant Director (Documents) at RFSL, Kochi, remaining vacant. The fact that similarly situated persons were promoted render the action of the Government in refusing to promote that applicant, arbitrary. The discretion vested with the Government for effecting promotions to selection posts cannot be misused to discriminate among equals. Therefore, we find no reason to interfere with the impugned order of the Tribunal. _**OP(KAT).443/19**_ 9 In the result, the original petition is dismissed. No orders as to costs. Sd/- **K.VINOD CHANDRAN JUDGE** Sd/- **V.G.ARUN JUDGE** _vgsx_ _**OP(KAT).443/19**_ 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE OA (E) NO.1175/2018 ALONG WITH ITS ANNEXURES.** **EXHIBIT P1(A1) TRUE COPY OF THE APPOINTMENT ORDER DATED 05.11.2009. EXHIBIT P1(A2) TRUE COPY OF THE G.O.(P)NO.19/2014 DATED 31.01.2014. EXHIBIT P1(A3) TRUE COPY OF THE SENIORITY LIST. EXHIBIT P1(A4) TRUE COPY OF THE ORDER DATED 15.10.2015. EXHIBIT P1(A5) TRUE COPY OF THE ORDER DATED 19.05.2017. EXHIBIT P1(A6) TRUE COPY OF THE REPRESENTATION DATED 17.07.2017. EXHIBIT P1(A7) TRUE COPY OF THE LETTER DATED 05.08.2017. EXHIBIT P1(A8) TRUE COPY OF THE G.O. DATED 02.09.2017. EXHIBIT P1(A9) TRUE COPY OF THE SELECT LIST DATED 07.11.2017. EXHIBIT P1(A10) TRUE COPY OF THE ORDER DATED 15.07.2017. EXHIBIT P1(A11) TRUE COPY OF THE ORDER DATED 02.08.2017. EXHIBIT P1(A12) TRUE COPY OF THE ORDER DATED 14.02.2018. EXHIBIT P1(A13) TRUE COPY OF THE ORDER DATED 07.10.2017. EXHIBIT P1 (A14) TRUE COPY OF THE 16.12.2017. EXHIBIT P1(A15) TRUE COPY OF THE REPRESENTATION DATED 05.03.2018. EXHIBIT P1(A16) TRUE COPY OF THE REPRESENTATION DATED 08.5.2018. EXHIBIT P1(A17) TRUE COPY OF THE SELECT LIST DATED 24.04.2018. EXHIBIT P1(A18) TRUE COPY OF THE SELECT LIST DATED 30.04.2018.** _**OP(KAT).443/19**_ 11 **EXHIBIT P2 PHOTOCOPY OF THE ABOVE M.A.NO.1354/2018. EXHIBIT P2(A1) TRUE COPY OF THE ORDER G.O.(RT) NO.1789/2018/HOME DATED 23.06.2018 ISSUED BY THE 1ST RESPONDENT PROMOTING THE APPLICANT. EXHIBIT P3 PHOTOCOPY OF THE REPLY STATEMENT OF THE 1ST RESPONDENT IN M.A.NO.1354/2018. EXHIBIT P4 A PHOTOCOPY OF THE ORDER DATED 16.11.2018 IN OA (EKM)NO.1175/2018.**